Official Opinion 2005-8

December 20, 2005

To:

Deputy Director, Georgia Crime Information Center

Re:

Updating of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file fingerprints.

You have requested my opinion concerning whether any of the following ten misdemeanor offenses and one felony offense enacted during the 2004 Session of the General Assembly should be designated as offenses for which persons charged with violations are to be fingerprinted. Additionally, you have identified two statutes which the Georgia Crime Information Center has no record of being addressed.

Those offenses include: O.C.G.A. § 2-10-62 (prohibited acts on a farmers’ market); O.C.G.A. § 16-5-20(f) (simple assault against an employee of a public school system); O.C.G.A. § 16-5-23(i) (simple battery against an employee of a public school system); O.C.G.A. § 16-5-70(e)(3) (cruelty to children in the third degree); O.C.G.A. § 16-8-62(f) (film piracy prohibited); O.C.G.A. § 16-11-107.1 (harassment of assistance dog by humans or other dogs); O.C.G.A. § 16-17-2(d) (prohibition on loans of less than $3,000.00); O.C.G.A. § 40-6-17(b) (prohibited use of traffic-control device preemption emitter); O.C.G.A. § 40-6-275 (duty to remove vehicle from public roads; removal of incapacitated vehicle from state highway); O.C.G.A. § 46-7-91(b) (holding oneself out as household goods carrier without valid certificate of authority); O.C.G.A. § 48-7-127 (unlawful tax practices); O.C.G.A. § 48-11-30 (sale or possession of counterfeit cigarettes); and O.C.G.A. § 50-3-1(b)(1) (defacing public monument, plaque, marker, or memorial).

In addition to the list of fingerprintable offenses mandated by statute, O.C.G.A. § 35-3-33(a)(1)(A)(v) provides that the Attorney General may designate any other offense as one for which those charged with violations are to be fingerprinted.

The first misdemeanor offense is O.C.G.A. § 2-10-62. That Code section provides that it shall be a misdemeanor for any person on a farmers’ market to engage in eleven prohibited acts. Among those acts prohibited are “deceptive or dishonest trade practices” and the destruction of “the physical properties of the market.” O.C.G.A. § 2-10-62(1) and (4). I hereby designate offenses arising under O.C.G.A. § 2-10-62 as offenses for which those charged are to be fingerprinted.

The second misdemeanor offense is O.C.G.A. § 16-5-20(f). That Code section provides it shall be a misdemeanor of a high and aggravated nature for any person to commit the offense of simple assault against an employee of a public school system of this state while such employee is engaged in official duties or on school property. I hereby designate offenses arising under O.C.G.A. § 16-5-20(f) as offenses for which those charged are to be fingerprinted.

The third misdemeanor offense is O.C.G.A. § 16-5-23(i). That Code section provides it shall be a misdemeanor of a high and aggravated nature for any person to commit the offense of simple battery against an employee of a public school system of this state while such employee is engaged in official duties or on school property. I hereby designate offenses arising under O.C.G.A. § 16-5-23(i) as offenses for which those charged are to be fingerprinted.

The fourth misdemeanor offense is O.C.G.A. § 16-5-70(e)(3). That Code section provides that it shall be a misdemeanor, upon a first and second conviction, for any person to commit the offense of cruelty to children in the third degree. A third or subsequent conviction of cruelty to children in the third degree is a felony offense for which those charged are to be fingerprinted. Additionally, cruelty to children in the first or second degree is a felony offenses for which those charged are to be fingerprinted. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 16-5-70(e)(3) as offenses for which those charged are to be fingerprinted.

The fifth misdemeanor offense is O.C.G.A. § 16-8-62(f). That Code section provides that upon a first conviction it shall be a misdemeanor of a high and aggravated nature for any person knowingly to operate the recording function of an audiovisual recording device while a motion picture is being exhibited, without the consent of the owner, operator, or lessee of the exhibition facility and of the licensor of the motion picture being exhibited. A second or subsequent conviction is a felony offense for which those charged are to be fingerprinted. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 16-8-62(f) as offenses for which those charged are to be fingerprinted.

The sixth misdemeanor offense is O.C.G.A. § 16-11-107.1. That Code section provides that it shall be a misdemeanor for any person knowingly and intentionally to harass or attempt to harass an assistance dog; to continue knowingly and intentionally to harass an assistance dog after receiving notice that his or her behavior is interfering with the use of an assistance dog; and knowingly and intentionally to allow his or her dog to harass an assistance dog. Upon a second or subsequent violation it shall be a misdemeanor of a high and aggravated nature to continue knowingly and intentionally to harass an assistance dog after receiving notice that his or her behavior is interfering with the use of an assistance dog; and knowingly and intentionally to allow his or her dog to harass an assistance dog. That Code section further provides that it shall be a misdemeanor of a high and aggravated nature for a person knowingly and intentionally to allow his or her dog to cause death or physical harm to an assistance dog. In 2004, the General Assembly replaced O.C.G.A. § 30-1-6 (assaulting, beating, harassing, or injuring guide or dogs assisting disabled persons) with O.C.G.A. § 16-11-107.1. This office had previously designated O.C.G.A. § 30-1-6 as an offense for which those charged are to be fingerprinted. At this time I designate offenses arising under § 16-11-107.1 as offenses for which those charged are to be fingerprinted.

The seventh misdemeanor offense is O.C.G.A. § 16-17-2(d). That Code section provides that it shall be a misdemeanor of a high and aggravated nature for any person to engage, aid or abet in any business which consists of making, offering, arranging, or acting as an agent in the making of loans of $3,000.00 or less unless certain criteria are met. If a person has been convicted of violating this Code section on three prior occasions, then all subsequent convictions are felony offenses for which those charged are to be fingerprinted. I hereby designate offenses arising under O.C.G.A. § 16-17-2(d) as offenses for which those charged are to be fingerprinted.

The eighth misdemeanor offense is O.C.G.A. § 40-6-17(b). That Code section provides that it shall be a misdemeanor for any person other than law enforcement, fire department, or emergency personnel to use, possess with the ability to use, sell, or purchase a traffic-control device preemption emitter. I hereby designate offenses arising under O.C.G.A. § 40-6-17(b) as offenses for which those charged are to be fingerprinted.

The ninth misdemeanor offense is O.C.G.A. § 40-6-275. That Code section provides that it shall be a misdemeanor for a driver not to remove a motor vehicle involved in a traffic accident from a public road where there is no apparent serious personal injury or death. In 2004 the General Assembly amended this Code section by substituting the language “public roads” for “expressways and multilane highways” in subsection (b). Additionally, the General Assembly provided that any violation shall be punished as a misdemeanor pursuant to O.C.G.A. § 40-6-1. This office had not previously designated O.C.G.A. § 40-6-275 as an offense for which those charged are to be fingerprinted. An offense arising from a violation of this Code section does not, at this time, appear to be an offense for which fingerprinting is required and I am not, at this time, designating this offense as one for which those charged are to be fingerprinted.

The tenth misdemeanor offense is O.C.G.A. § 46-7-91(b). That Code section provides that it shall be a misdemeanor for any person, firm, or corporation to hold himself or itself out as a household goods carrier for hire without having a validly issued certificate. I hereby designate offenses arising under O.C.G.A. § 46-7-91(b) as offenses for which those charged are to be fingerprinted.

The eleventh misdemeanor offense is O.C.G.A. § 48-7-127. That Code section provides that it shall be a misdemeanor for any person to engage in certain unlawful tax practices. I hereby designate offenses arising under O.C.G.A. § 48-7-127 as offenses for which those charged are to be fingerprinted.

The twelfth offense is O.C.G.A. § 48-11-30. That Code section provides for felony penalties for the sale or possession for sale of counterfeit cigarettes. Pursuant to O.C.G.A. § 35-3-33(a)(1)(A)(i) this is a fingerprintable offense. I hereby designate offenses arising under O.C.G.A. § 48-11-30 as offenses for which those charged are to be fingerprinted.

The thirteenth misdemeanor offense is O.C.G.A. § 50-3-1(b)(1). That Code section provides that it shall be a misdemeanor to deface a public monument, plaque, marker, or memorial. I hereby designate offenses arising under O.C.G.A. § 50-3-1(b)(1) as offenses for which those charged are to be fingerprinted.

I trust that my revisions of the specific designations of those offenses for which persons charged with violations are to be fingerprinted will aid you in discharging your duties pursuant to the Georgia Crime Information Act.